EULA In Games

kakibesar writes "AVault has kicked up an article that takes a look on that lovely little screen that you see when you typically install a game, the End-User License Agreement. Basically it details why companies use EULA in games, as well as what you're giving up when you click on the 'I Agree' button."

Comments

Offer EULA on the web.

[qwerty823]

What if software companies would offer a copy of their EULA on their website for a given software title? Then you could read and review it before making a purchase. Would this alleviate some (or all) of the concerns about having to agree to a shrink-wrap license? Maybe even put a text link on the box saying where you can review the license.

Re:Offer EULA on the web.

[interiot]

NetZero does this...
--

Re:Offer EULA on the web.

[Pahroza]

This would be a great idea! However, not that many people read the agreements anyway, as most people want to get right into the software they bought. But if enough people did start reading and filing complaints, either the EULA would change, or they would pull them off of the website. If a company knows that they are slowly losing customers because they object to a EULA (it takes a higher caliber of person to stand up and not use software on principle), and they aren't willing to change it, then I think they would attempt to keep them from reading it until the last possible moment. This is what I think is presently happening.

Re:Offer EULA on the web.

[GC]

Perhaps,

But then they could change it after you had accepted..

Perhaps if they require you to print it out.

How many different EULAs have we seen, for what is essentially the same product.

How many companies have distributed software with a higher build id, where the software was the same intrinsicaly, but the EULA had changed?

reverse engineering

[ethereal]

The third promise every game obtains from the user is that they will not try to reverse engineer or modify the product in any way using the program they've received. Keeping this protection is at the core of what differentiates owning the software from licensing it. If software companies ever had to transfer ownership of their work when they sell it, it would be impossible to prevent people from taking it apart and figuring out how it ticks. But because these are license agreements, and intellectual property ownership continues in the law to reside with the company, game companies can prevent rivals from stealing their software innovations for their own purposes.

What this ignores is that reverse engineering falls within the bounds of fair use. The publishers of a game can retain ownership all they want, but reverse engineering is supported under U.S. law (and others too, I'm sure). Thus many EULAs are misrepresenting the law (at worst) or attempting to get you to agree to give up rights which you would normally have (at best).

It's too bad for software publishers that users have such rights, but it's unethical for them to attempt to strip away a user's rights or trick users in this manner.

Don't get me started on screenshots, either - if you own the copyright to a document you created with Microsoft Word, why don't you own the copyright to a screenshot of a game you created with Quake or Rainbow Six? In both cases you're starting from the default document/game provided with the software, but you add and subtract things creatively from the document/game until you have something that's truly unique. This will only become more of an issue as games become less linear and start to dynamically generate entire worlds for you to explore.

Re:reverse engineering

[Erasmus Darwin]

Can I just work my way down the EULA, point by point, and break each term with impunity because they nullified their own contract? I dunno, IANAL, but it sounds damn nice to me.

I'm also not a lawyer, but it seems that the best you could get would be a nullification of terms that don't have protection outside the contract. It seems copyright laws and similar regulations would still protect your from, say, putting a copy of the program up on a website. However, it's quite possible that reverse-engineering the product would become legal. Or at least it would except for potential DMCA issues.

Re:reverse engineering

[pheonix]

What this ignores is that reverse engineering falls within the bounds of fair use. The publishers of a game can retain ownership all they want, but reverse engineering is supported under U.S. law (and others too, I'm sure). Thus many EULAs are misrepresenting the law (at worst) or attempting to get you to agree to give up rights which you would normally have (at best).

No, that's not right.

What you're ignoring is that agreeing to the contract supercedes your legal right to reverse engineer. To make this more plain; take a standard NDA for an example. You are (typically) allowed, under the first amendment (for the USians here) to tell others about your experiences, etc. If you sign an NDA when hiring into a company, you're agreeing *NOT* to speak about certain things, under threat of legal penalties.

What I do disagree with is the fact that you can't really help but agree with the contract. If you read the EULA and actually agree, that's just fine. What recourse do you have if you disagree? MS has already refused to honor their own EULA by offering a refund if you disagree (and their new EULAs say to go to the vendor only, not MS). Most vendors won't return your money. This is the real problem with the EULA. A EULA, in concept, isn't a bad thing. A EULA, in practice, should be illegal as hell.

Re:reverse engineering

[pheonix]

...the EULA screen is attempting to coerce an agreement by holding hostage software that you already own.

Actually, EULAs have been upheld legally in the US and at least 2 European countries that I'm aware of, so in point of fact, it is a legally binding agreement.

Aside from that, a EULA is hardly the only place you'll find "post-purchase terms" being thrust on the customer. I'm sure you're using an ISP, and you'll find that one of the terms in your TOS is that any and all terms in the TOS are subject to change at any time. If they change, you're faced with the choice of discontinuing your use or agreeing with the changes...all of this AFTER YOU BOUGHT THE SERVICE!!!!

The EULA is not significantly different, save for the fact that it's easy to stop paying for your ISP and not TOO difficult (in my experience) to get that last month's payment back. It's much harder to get your money back as a result of disliking the terms of a EULA.

Here's something I want to know...legally, doesn't it make sense that if I read a EULA, disagree, try to return it and am unable to that the EULA is null and void? I mean, if the writer of the 'contract' doesn't honor the contract, do I have to? Can I just work my way down the EULA, point by point, and break each term with impunity because they nullified their own contract? I dunno, IANAL, but it sounds damn nice to me.

Re:Returning software

[Hard_Code]

And what if I just extract setup files and do a manual setup, never once seeing a EULA...what then? In fact, can I even be charged with illegally reverse engineering the setup program if I never agree to the EULA *in* the setup program?

Re:The EULA defending paper

[Shotgun]

I like how they use the word "teach" where they mean "bluff". Copyright law prevents unauthorized redistribution. Copying something onto many computers that you own, is not redistribution. You're still the only one who has it.

So, if I owned Joe's Software House and bought one copy of CompilerMagic 2.0 for 50 seats, am I within my rights since I own all of the computers? This becomes questionable, and I would really like to see someone with the legal backing purposely cross a EULA in order that we might get some legal rulings behind us.

My firm conviction is that they are bull... as has been stated here often enough, but I don't have the pocket book (or 50 computer) to test it out in court.

(though, I would be willing to contribute to anyone who would give it a shot.)

Re:Forcing companies to invalidate EULAs themselve

[Forkenhoppen]

True, but by the same token, whenever I, working for a technology company, am installing software on a company computer, am I legally able to enter into agreements on behalf of my company? I can tell you right now that I'm not. Yet, I as a low-level employee have been faced with the task of installing everything from Windows through to Visual Studio. This is not in my job description, but I do so anyways, as I have been authorized to do so by my boss.

By the same token, the people at Microsoft tech are given the job of talking with customers, and are authorized to recieve feedback from customers for bug-finding purposes, etc. If my program had a bug in it, and I was sending it to their tech people for bug-checking, are they not authorized to enter into a contract to view my code? Remember, in the event that there is no EULA, my code falls under the rules of contract outlined by copyright, where fair use, etc., comes into play.

Come on; just try and tell me that you don't think Microsoft has ever gotten a piece of code before with a huge "COPYRIGHT ID SOFTWARE; reproduction strictly prohibited without prior authorization from ID SOFTWARE" label on the top. (Or substitute your favorite software company. Lucasarts..? Borland-Inprise..? Corel, even.) This is also a contract; are they not entering into it on behalf of Microsoft when they look at the code?

(My argument is not limited to Microsoft, remember; I realize that Microsoft probably doesn't allow any external source code to make it's way into their walls. The argument's more of a theoretical one--if I thought Microsoft were this vulnerable, I'd be off sending emails right now instead of posting on Slashdot.. ;-)

Ooh!

[Mike1024]

Hey,

"Moreover, EULAs play an important role in curbing software piracy"... "EULAs inform end users that making extra copies is not permitted (except for backup purposes) and that the software publisher is serious enough about enforcing this point to provide a written notice."

Ooh, a pages-long written notice written in such meaningless legal-ese that most people couldn't understand it if they even bothered to read it! Ph33r!!!

That'll be almost as good a deterrent as writing 'Do not make illigal copies of this disk' on Microsoft Windows CDs!

If companies want to clarify thier point, they should do it in a way people can actually understand and will see and read. Example:

This program can only legally be installed on one computer.

Ten words. Make it, say, 18-point and show it in the background as files copy. This will 'inform' people.

Michael

...another comment from Michael Tandy.

The reason for harsh EULAs

[Toddarooski]

Will id software really sue you for producing a Quake mod? Of course not. Unless, of course, my "mod" is one that removes the words "Quake" and "id software" and replaces them with "Todd's Super Cool Shoot-a-thon!" and "Todd Software".

The problem being, there is no easy legal way to distinguish between a benevolent mod and an evil one. (Sadly, the phrase, "Total dickhead move" is too ambiguous of a term to stand up in court.) This leaves id software's legal department with little choice but to say, "No mods", but only enforce it in the case of truly evil mods.

The same holds true for most of the other cases --I'm sure the makers of Rainbow Six won't mind if I post a screenshot on my little game-review web site. But if I'm the maker of "Counter Terrorist Team Seven!" and I want to start ragging on Rainbow Six's graphics on my site, they would mind.

The major problem with all of this is that it's pretty much up to the companies themselves to determine what's a total dickhead move worth enforcing and what's not, and if you read their minds incorrectly, you can get burned.

EULA enforcability is a fiction...

[StevenMaurer]

EULAs, like old deed stiplations from the 50s that restrict the race that owners can supposedly can sell to, are in all non-UICTA states, nothing but legal fiction.

One of the most fundimental tenets of contract law is that you must be aware of the terms of a contract before you commit to it. EULAs do not appear until after sale, and thus are entirely invalid, whether you click "I agree" or not.

Some more creative laywers have tried to get around the law by saying "If you don't agree, you can return the product for a full refund". However, even if you *could* return the product this way (which you typically can't), this would not be enforcable. You paid your money, the store gave you the product. That was the contract.

The only part of EULAs that are enforcable are terms that are generally against the law anyway - like copyright violations. But those are enforcable with or without EULAs.

90% of civil contract enforcement is based on intimidation and taking advantage of legal ignorance.

Re:EULA enforcability is a fiction...

[Chester K]

EULAs, like old deed stiplations from the 50s that restrict the race that owners can supposedly can sell to, are in all non-UICTA states, nothing but legal fiction.

Awesome! That means I don't have to distribute the source code to modifications I make to GPLed software when I distribute the binaries, right?

Yeah!! That's sticking it to Corporate America!

Re:EULA enforcability is a fiction...

[V_M_Smith]

One of the most fundimental tenets of contract law is that you must be aware of the terms of a contract before you commit to it. EULAs do not appear until after sale, and thus are entirely invalid, whether you click "I agree" or not.

While this is true, another fundamental tenet of contract law is that the expectation of the parties involved is also a consideration. If I have seen a (for example) Microsoft EULA before, and know that Microsoft always places these licensing restrictions on their software, I can't argue a lack of consent on subsequent software purchases.

The typical example of this is the warning printed on the back of a parking slip at an underground garage. It generally says the owners are not responsible for theft and damage etc. Since everybody knows this clause exists (unless you've never used a garage before...) they don't need to bring it to your attention before you pay your $5 for parking.

Of course, IANAL (but I'm getting a second-hand legal education through my wife...)

Re:EULA enforcability is a fiction...

[ChaosDiscord]

In response to "EULA...are...nothing but legal fiction", Chester K replied "Awesome! That means I don't have to distribute the source code to modifications I make to GPLed software when I distribute the binaries, right?"

Umm, no. Actually, you don't need to agree to the GPL. If you don't, you are bound by standard copyright laws. You can use the software, rewrite it, and generally do what you will with it, but you many not redistribute copies. You only need to agree to the GPL is you want to gain additional rights normally withheld by copyright law. This is why the GPL is traditionally distributed in a file called COPYING. In fact, this is why the GPL is clearly legal, it doesn't take away rights in exchange for nothing (like most EULAs). It actually gives you additional rights, it takes none away. Without the GPL you can't distribute modified software at all, with or without the source.

You don't need to agree to the GPL (and GPL software that makes you agree in the installer isn't really doing it right... but that's a different story.)

If software manufacters want to give end users additional rights if they agree to a EULA, that would be a different story.

Re:EULA enforcability is a fiction...

[StevenMaurer]

That means I don't have to distribute the source code to modifications I make to GPLed software when I distribute the binaries, right?

Actually, wrong.

Copyleft isn't an EULA. Rather, the terms of distribution (which is all that Copyleft covers) is the consideration you are providing - you're not paying for it after all. Further, since you must look at the code before you can use it in ways the Copyleft prohibits, you are free to reject the terms as you see fit.

You certainly would have an argument if the Copyleft contained restrictions on simple terms of Use, since you might not be exposed to those terms before you used it. But it is flat out impossible for you to modify any software covered by the GNU public license without being made aware of the restrictions on distributing modified versions.

That, by the way, is why the GNU public license is ever so redundantly repeated over each and every file it covers. That way, no one can say "I modified this file, but there was nothing in it that said I couldn't keep the modification to myself when I distributed the binary".

Re:EULA vs. Warranty

[mpe]

The companies only make provisions like this (in the case of the EULA) because it is necessary.

No they do so because EULAs are the norm with computer software. Effectivly they are a tradition, clung to blindly.
Somewhere there is the original EULA, most likely written to protect "mom and pop software writer" from "megacorp client".

If they didn't put stringent demands on the consumer, he'd just abuse the product.

So what? Other industries, including those which involve abstract IP such as publishing, get along fine without them.
Anyway if someone finds a novel use for a product they have bought then they are morally entitled to copyright and patent protection on their innovation.

nuclear Java

[TMB]

Best section of the article...

The Java Nuclear Clause (example: Age of Kings): Perhaps the most humorous line sometimes found in EULAs has to do with protecting the developer from concerns about Java being an unreliable programming language. Occasionally, Microsoft EULAs, as well as those of other companies, have featured language like this, found in Age of Kings: "Java technology is not fault tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of Java technology could lead directly to death, personal injury or severe physical or environmental damage." One presumes this was a clause from another kind of software EULA that somehow occasionally slips into game agreements: concerns that the most recent Chernobyl problems were somehow caused by a Mongol Feudal Age rush are probably overstated.

Personally, "java nuclear" sounds to me like a damn fine cup of coffee. ;-)

On the subject of "weapons systems", wouldn't a failure be more likely to prevent death than cause it?!

[TMB]

Re:nuclear Java

[toolie]

On the subject of "weapons systems", wouldn't a failure be more likely to prevent death than cause it?!

It depends on the type of failure. If a missile system launches when required, but not detonate, that might save lives. If a missile system launches inadvertantly, but does detonate, that might kill some people (even friendlies). If a missile system hangfires (motor ignites, rail doesn't release), its possible that the pilot doesn't die, or crash, but is required to stay away from the field for a certain amount of time (I think two hours) before being allowed to land, in case more malfunctions occur.

Re:nuclear Java

[sconeu]

Actually, Ada does have run-time errors, but that's what exceptions are for. If you get one, and it ain't caught, you terminate.

C++'s exception handling model essentially came from Ada.

Re:EULA vs. Warranty

[mpe]

The company that really needed a EULA was Firestone.

Or how about something like. "Ford Pinto EULA. The fuel system is the proprietrty property of the Ford Motor Company. all alterations, modifications, inspections, examiniations and reverse engineering is prohibited. No liability will be accepted for any death, injury, property damage related to the fuel system, even if Ford Motor Company is aware of any such possibility".

Re:Returning software

[yamla]

Not at all. I predominantly use Linux for my operating system. I'll go back into Windows to play the occasional game or to do some programming for work. But if I picked up a game where I was required to allow them to search my hard drive, I would not agree. Or if I picked up an application that did not let me sell it to someone else (after I had completely deleted it, of course), I might not want to accept that.

Re:Obvious Question: Who read the EULA?

[heikkile]

I am a lawyer, and I have written EULAs for major software releases (no games, though). Do I read EULAs? No.

May I ask, just out of curiosity, and as a foreigner who does not understand the U.S. legal system, why do you not read them EULA's? Is it because
1) you do not believe they have any legal way to enforce what ever conditions they put there, or
2) you do not believe they can ever prove you actually clicked that button, or
3) you do not think they will ever bother to look in your direction

Typical EULA

[InfinityWpi]

"By playing this game, you hereby give up your right to have a life outside of video-game playing, and shall spend hours on this game until completed. You shall also spend every waking hour that is not spent playing this game, talking about how cool this game is to all your friends, even if they do not have the system required to play the game."

Or you'd think that was in there, by how some people act.

Re:Obvious Question: Who read the EULA?

[RickHunter]

Exactly. Most EULAs are written to discourage people from reading them. If Joe and Jane Average happened to actually read the EULAs on these games they bought, and saw some of the terms put in there, they might demand their money back! Or, even worse, raise a fuss about it and some government official might take notice! This is completely aside from the fact that much of the language used in EULAs cannot be reasonably expected to be fully decyphered by anything less than a team of trained lawyers. And that you cannot see them until after you've bought the product - many companies will refuse to give pre-purchase copies of their EULA to people.

Read The Software Conspiracy by Mark Minasi for some more details on EULAs. (Blatant plug, I know, but its a good book!)

-RickHunter

Imagine the potential

[11thangel]

Think about it. For any program that uses an internet connection, the "i agree" button can be linked to just about anything. Knowing that most users dont read 90% of the EULA, they could be tricking you into buying from their ISP or long distance service when you buy a copy of ultima online. Someone is probably already doing it.

Re:Obvious Question: Who read the EULA?

[fluffhead]

Unfortunately many consumer protection statutes specifically require all-caps, large font size print, in order to effectively disclaim warranties. This is supposed to be so that people will notice the disclaimers, and not unknowingly waive their rights. I believe these requirements are in the UCC and maybe even in UCITA but don't quote me on that. The concept of "SHOUTING" as rude behavior, while dating back to at least Usenet days, is still quite a bit newer than most of these laws.

<DISCLAIMER>
IAAL (I am a lawyer). But not practicing anymore. Texas Bar License "Inactive Status" (so I don't pay dues anymore). This is not legal advice. Don't rely on what I say. Get your own damn attorney. Not Board Certified Texas State Board of Legal Specialization. So there.
</DISCLAIMER>

#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak

Re:Obvious Question: Who read the EULA?

[Zak3056]

"Here is where you sign your life away, just scroll down and click "I accept""

Mine is generally (when doing NT installs) "Hit F8 to give your firstborn to Uncle Bill." :)

EUA....

[matth]

You know... most everything (including Microsoft products) you don't even have to read the EUA... you can just click accept.... I noticed that Napster requires you however to read it before you can click I accept (or at least make it seem as though you read it, by scrolling through the whole thing).

Something I've wondered about... can a company legally put something in the EUA.. like many paragraphics down, like that you would need to give them so much money or do something, and then when you click agree, have it send something back to them, say over the internet.. so they would have a record of it... would this be legally binding? And would you as the user have to legally pay them since it was in the EUA which you clicked I Accept on?

Re:EUA....

[Arandir]

The problem with EUAs are that they are not contracts, yet most governments treat them every bit as binding as your mortage agreement which took seventeen signatures and nine attorneys to validate.

The law has thrown away common sense when it comes to information. In every other type of contract or agreement in the world you need either a) a face-to-face handshake or verbal assent, or b) a signature. Only in the software world do you get licenses that say "by using this software you agree to...".

If a company wishes to provide a level of permission to the user equal to or greater than what copyright provides, then a click-through or shrink wrap license is fine. But if they desire to remove any rights that you already possess, then they need to get your explicit consent.

Sure, getting signatures and stuff is going to crimp the style of software manufacturers. But so what? The industry practice of unilaterally imposing private law (a contract) on me crimps my style as well! If I purchase a box from a third party retailer, I expect full legal rights to use the contents in any lawful manner.

Imagine the following license inscribed on the barrel of a number two pencil: "By using this writing instrument, you agree not to let any other party use the instrument, nor disassemble the pencil for any manner; this pencil may only be used in conjunction with approved writing surfaces; you must surrender the pencil upon demand."

Re:EUA....

[TheCabal]

The EULA for WinNT4.0 requires you to scroll down to the bottom before you can hit F8 to agree. Strangely enough, the EULA for Win2k doesn't have this. NT's the only MS product I've seen that has its EULA set up this way.

Re:I never agree - Yes you do

[nuggz]

Uh yes you do, either that or you are violating copyright law. unless you use all PD software.

Likely you are just using BSD & GPL and similar licenses which grant usage without much more then disclaiming liability.

Quake 3 Arena EULA

[kevinank]

After reading the EULA for Quake 3 I was so incensed that I drafted and mailed a statement denying my aquiescence to the contract to both Loki and to a friend who could witness that I did my best to show that I do not accept the terms stated in the EULA if it ever came to a legal proceeding.

I consider that having paid for the product, that I own it; and if someone tries to modify that ownership after it has already been alienated by including the text of a contract in the box that states among other things that I won't ever sell the product to someone else, there isn't any reason at all that I should accept that contract.

I made it completely clear in my letter that I do not accept the contract, and I urge anyone else who feels the same to send a similar message.

Interestingly, I did eventually get a mail back from Loki with some free legal advice, so I wrote back a reply reiterating my argument, stating that I did not accept their argument, and that I was willing to test our difference of opinion in court if necessary.

But I mostly did that because Q3A is the most onerous of EULAs I have ever seen. Other EULAs leave a lot to be desired, but they don't usually take away basic rights that you have in owning the copyrighted material and grant you nothing in return.

(Loki tried to argue that by using the product I had to agree to the license. But use of a product is not a protected copy right, so I disagree with their argument; I am fully within my rights to use a copyrighted work, whether I've agreed to a contract or not. IMHO, of course. IANAL.)

EULAs of the future

[kammat]

By reading this comment, you agree not to quack like a duck while reading this comment. If it is discovered that you have quacked like a duck during the reading of this comment at any time, we reserve the right to sue you for damages. Damages, in this case, may be interpeted as all your money, your clothes, any first born children, your eternal salvation if you believe in such a thing, and anything else we can get away with.

You may not make illegal copies of this comment. Illegality of copies is determined by the laws of Estonia-on-Avon, a small principality covering approximately one half acre somewhere in West Tenessee. A copy of these laws may be obtained by visiting Estonia-on-Avon, and asking Prince Bob to write down a copy for you. Punishment for illegal copies will also be left up to Prince Bob.

You may not reverse engineer this comment to attempt to discover the source code of this comment for use in your own products. If you wish to make modifications of this product, please contact us for further info. Infractions of this clause will lead to visit by a large man named Guido at late hours of the night.

Re:Returning software

[dillon_rinker]

To be precise - the INSTALL ROUTINE will stop.

All the install routine does is put files into place and make configuration changes. These can be done manually.

Derek Smart?

[El Kevbo]

I'm sorry, but this article lost all validity when they started quoting Derek Smart.

Re:I'm 16. Does EULA legally bind on me?

[ca1v1n]

Exceptions are made for things that are considered "essential" such as food. It is assumed that it would be an undue burden to require someone to be 18 to buy food in some extended manner other than a simple purchase, and therefore minors are held responsible for such contracts. Still, those things are rare, and video games, despite my addiction, do not qualify as "essential" in the eyes of the law.

My EULA

[revbob]

As a developer of Free Software, I've come up with my own EULA that meets my needs perfectly:

All these programs are copyrighted © by Bob Crispen and are provided without charge under the terms of the GNU General Public License and other licenses as READMEware: In return for the software, you promise to read the documentation.

If anybody emails me with a really stupid question that I've already answered in the documentation, rather than cutting and pasting from my copy of the docs to the email, I just inform the luser that he's violated the terms of the license.

Rev. Bob "Bob" Crispen

The rest of the world

[heikkile]

Knowing that SlashDot has a worldwide readership which usually shares the sceptical nature often expressed here, may I humbly ask readers, especially lawyers, from other countries to elaborate on the situation in their own countries. Either in general terms, or specifically about

1) Do click-through licences have any legal standing in your country?
2) What possibilities does a user have - in your country - if the product requires him to accept an EULA that he can not accept? Can he return the produce, and get his money back?
3) What if someone uses a program without accepting the EULA, for example by unpacking the installation files manually? Where does he stand?
4) Generally, what are the default rights of a consumer who has purchased a piece of software. Especially if there is no license agreement? Any sort of "fair use" allowed for anyone? Can these be limited by an EULA, or even by a signed agreement?
5) Does it make difference to any of these points if the producer of the software happens to be located in another country, or if the agreement happens to be worded in a language the user may or may not understand?

Inaccuracy in article

[Dave_t]

quote from the article:

"Have you ever paid to play Half-Life in a cyber-cafe? Can't do that."

This is slightly inaccurate. I run a LAN game room (dumb name) in Madison, WI (www.ping-time.com), and in order to get Half-Life, we had to license it from Havas Interactive. Many games have such options to license them, and I know that Blizzard does. However, I doubt many "cyber-cafes" do license the games, because in some cases it is prohibitavly expensive. David Turner

EULA and Minors

[Archangel Michael]

My underage child who cannot be held in a binding contract (eg. EULA) is the person who installs anything that contains a EULA (a type of binding contract). Thus I am not bound by any such agreement. This includes the "don't open" licences on various packages.

Re:Obvious Question: Who read the EULA?

[WNight]

Sure, I read through all binding contracts before I sign them. But I don't read EULAs before I click through, they're meaningless corporate drivel that isn't enforcable.

EULAs violate many of the basic contract principles (they aren't voluntary because the company is withholding something you paid for until you sign an unrelated contract, they don't offer you anything because you already paid to use the software, etc.) The only way an EULA could be binding is with some UCITA-type law, and 'they' passed that precisely because 'they' knew that EULAs aren't at all enforceable.

Technically, an EULA just can't be forced upon you for the purchase of software you already bought. If you like the EULA you can take the company up on its offer (like you did) and it will be binding, because you're waiving some of your rights.

But you can click-through without fear, if the only way to get around the contract to use the product you legally purchased is by clicking 'I Agree' then that button has no more legal significance than 'Next'.

A company could make an EULA binding, IF they didn't make it mandatory, and offered something you didn't already own (an extended service contract perhaps). Or, in the case of shareware where you didn't buy the product before seeing the EULA.

But a hidden contract (in the box, can't be read till it's purchased and taken home) isn't binding.

Re:Returning software

[mwa]

If the EULA says to return for a full refund of you don't agree, and the vendor refuses a refund because you didn't agree, aren't they violating the agreement? Wouldn't that void it, since you disagree and they disagree, there is no agreement. Now that the box is in your hands, with no licensing agreement you own it.

Re:Returning software

[WNight]

It doesn't really matter, the EULA is already unenforcable before that. The fact that the store knows there's an EULA and the software company does (obviously) simply goes to prove their intent - that the contract never be binding.

But once you buy a product (or a license to use, if you choose to see if their way) you *own* that product/license. There may be rights attached to it that you don't own (copyright, etc) but you have all rights necessary to use it in the manner for which is was advertised when you bought it.

If I sell you a software product you have the right to make the copies inherent in using it (on ram, the installed copy, etc) because you couldn't use it otherwise and I sold it to you as a working product...

Anyways, if you buy a product you have the right to use it. The EULA usually offers you the right to use the product for agreeing to the 'contract'. This isn't binding because you already own that right, they're offering you something of no value. Then, they're attempting to withhold your right to use the software because the 'I DISagree' button cancels the install. This is coercion, they're forcing you to do something in order to exercise your rights. It'd be like me threatening to take your car unless you bought my tires.

There are other problems with the EULA, but those are the main ones.

Just ignore them, unless they're in your best interest (like Windows Refund Day). They aren't binding on you, but they are binding on the company that issued them. (They can't have offered a contract they knew was invalid, can they? :)

Re:Returning software

[WNight]

So, click whatever they insist you click to make it install.

They can't take away your right to use the software you purchased, so by putting in a contract you must 'agree' to in order to use that product renders the contract void.

To get around that they'd have to have 'I Agree', 'Cancel', and 'I Disagree, Install Anyway' buttons. Because they don't, you're free to install that software even if it means clicking 'I Agree'.

Re:Changing the EULAs on Windows software

[yamla]

But, of course, reverse engineering is legal unless you agree not to. And reverse-engineering before you agree not to is therefore legal.

Re:Returning software

[WNight]

We're free and clear with the Cue Cat scanners because they gave them away. They could give them away free with any labelling they wanted, people would still be completely within their legal rights to do whatever theyt wanted to the device.

If they want it to be binding they need to ask people to agree to the contract *before* they get the device, and they can't give them away unsolicited.

EULA and copying

[MobyDisk]

from the article:
"Moreover, EULAs play an important role in curbing software piracy...EULAs inform end users that making extra copies is not permitted (except for backup purposes)..."

The article seems to be saying that any sort of copying, other than for backup, is illegal. This is not true. I can copy the software onto another PC so long as they are not in simultaneous use. I can also copy to a more convenient media (moving to a DVD or ZIP or HD instead of a CD-ROM). The article also doesn't mention those cases of companies adding copy protection schemes and not allowing copying at all, even if their EULA does not dissallow it.

Who Reads EULA? According to Nielsen, few.

[Phrogz]

Jakob Nielsen wrote an article in September 2000 discussing 'regulatory usability', about the need for increased comprehendability (my word) in the plethora of legal nonsense we have to wade through.

He particularly mentions EULA and disclaimers at the end of the article, stating:

From usability studies, we know that users almost never bother to read legal documents when they come across them on a website. People just click the I Accept button without even glancing at the text. Since everybody knows that users don't read these agreements, it is interesting whether they will even hold up in court.

I will be very interested how an EULA holds up in court when (not if) the day comes. Full article here...

Re:Returning software

[rabidcow]

(Microsoft) won't take its software back.

Can you blame them? If you were Microsoft, would you want your software?

EULAs and the UK Sale of Goods Act

[cwalkden]

I've often wondered whether some EULAs contradict the UK's Sale of Goods Act. (The Sale of Goods Act is one of the better bits of consumer legislation in the UK and gives consumers a great deal power. Here is an explanation of the main points.)

For example, the goods must be of `Fit for their purpose'. This means that if you're lead to believe that a product can do something, and it can't, then the retailer is obliged to refund your money. I would imagine that, for example, the packaging for System Shock 2 implies that you will find out what's going on on the ship. Not without downloading the patch you won't! Are the goods fit for their purpose? (This isn't to slag of SS2 - it was just the first example I thought of.)

Another example, the goods must be of `merchantable quality'. What this means is left vague and for the (usually small claims) court to decide. A yogurt containing rotting fruit is clearly not of merchantable quality, but I guess the question `Is Win9x of merchantable quality' would occupy the finest Slashdot minds for days...)

Notice that the Sale of Goods Act applies only between the consumer and the retailer. *NOT* the manufacturer. As I understand it, any contract exists between the retailer and the consumer, not the manufacturer and consumer. Moreover, retailers can't get around the Sale of Goods act by introducing their own terms (although there are some minor cop-outs, for example, you can't complain about a fault if it was made aware to you at the time of purchase. (Although, I can't see Dixons or Comet reading out BugTrak to everyone who wants to buy the upgrade to WinME...))

I should add that IANAL. Also, for examples of fun things to do with the S of G act, see uk.legal.

-- C.

Re:EULAs and the UK Sale of Goods Act

[uglyduckling]

But.... I wonder whether the Sale of Goods Act would apply to the license or the software. If indeed a license only is being sold, then the Sale of Goods Act would be fulfilled as follows:-

1. Is it of satisfactory quality?
   The license allows you to access the software without any obvious faults
2. Is it fit for the purpose sold?
   It always makes the software run (The only exception I can see is if the vendor said "Microsoft Word allows you to create databases" in which case the license could be considered at fault because the vendor should have sold you a license for Access instead of Word.)
3. Is it "as described"?
   Again, it makes the software work, unless the box contains the wrong CD or the license key is incorrect or damaged.

Anyway, I think you can see what I'm getting at. Of course IANAL either, but I guess there needs to be a test case to see how the sale of licenses applies to the Sale of Goods act.

Maybe not

[Sloppy]

Uh yes you do, either that or you are violating copyright law. unless you use all PD software

Or he is using BSD & GPL software without taking advantage of the additional rights (e.g. redistribution) that he would have if he agreed to the license.

---

Re:Returning software

[gmhowell]

I'm not sure, but I'd file a civil suit (small claims, of course) naming both companies as defendants. This latter part is important: if you just name one, they can finger point.

Re:Returning software

[gmhowell]

Oops. Didn't notice that future shop was a Canadian company. Not sure how that buggers things up.

How to work around EULAs

[jafuser]

Simple, when you get to the EULA that tells you you can't reverse engineer, disassemble, or modify the executable object code, you "Disagree" to the EULA. Then you exit the program, open a debugger, and start to reverse engineer, disassemble, and modify the executable code to remove the EULA agreement. Next time you open it, you won't get the EULA, and you never agreed to it, so have fun...

--
EFF Member #11254

Re:Returning software

[Masem]

Most boxes have something on them that says "You must agree to the terms of the EULA (contained within) to use this software." Because you bought this, you have no defense to say "I never knew there was no EULA for this software!". (Alternatively, this is why those hacking CueCat software *are* in the clear: the average packaging did not contain any evidence, including a redirected on, on the distribution package -- if you simply plugged it into a keyboard port of a Linux box, you won't ever see a EULA either).

The case in point here is that if you are aware of the EULA and read it appropriately, finding that you can't agree to those terms, what recourse do you have? Can you return it? Can you continue to use it?

Re:Returning software

[mr]

Software: Pagekeeper
EULA return policy: The place where you bought it, or us for full refund.

So, I wrote an e-mail...and got no response. Called, and was told there was no way to return the software. Asked for names, then asked to speak to a supervisor.
Said supervisor said they would call back. VP called back in 2 hours, said "no". Asked him to place that in writing, and mail that "no" to me.

3 days later, VP called back and gave me the address to send the software back to. :-)

Sending back software is a good idea, but it takes alot of time and effort to obtain the end goal. And some (Microsoft) won't take its software back.

Games are kind of a weird case...

[leroy152]

and the article makes a pretty good point, that all thats needed is the "no reverse engineering" clause.

The thing that got me was the quote from Microsoft about why EULA are neccessary. It basically stated that EULA exist because publishers would have to charge more, because of those that would exploit reverse engineering. According to that then, I can readily buy (for an added price) versions of software that allow me to reverse engineer them. Seems quite obvious lawyers don't live in our reality.

Cheers,

leroy.

The EULA defending paper

[Sloppy]

The paper defending EULAs that he links to and quotes is more interesting than the article itself. The part where they explain (*cough*) why copyright laws are insufficient is particularly riddled with bias and newspeak.

Proponents of not using EULAs fail to recognize that most purchasers of mass market software have little knowledge of their rights under copyright law. Most of these customers have probably never heard of the doctrine of first sale, the doctrine of fair use, or section 117 of the Copyright Act.

Oh, that is just so lovely and thoughtful. Those rights granted under copyright law are so obscure and full of legalese; people need a nice simple and easy-to-understand EULA. Take people's rights away from them, so that they will have a better understanding of what rights they have left!

Moreover, EULAs play an important role in curbing software piracy. Despite the attempts of software industry groups to teach the public that copying a software program onto a second computer is equivalent to stealing a second copy of the program, many people still confuse the ease with which one can copy with a right to copy.

I like how they use the word "teach" where they mean "bluff". Copyright law prevents unauthorized redistribution. Copying something onto many computers that you own, is not redistribution. You're still the only one who has it.

EULAs inform end users that making extra copies is not permitted (except for backup purposes) and that the software publisher is serious enough about enforcing this point to provide a written notice.

EULAs do not "inform" the user that they have fewer rights than would otherwise be granted under law; they stipulate it. EULAs cause those rights to be lost (if the user agrees).

I could go on and on picking at this piece of crap, but I think I'll save my bile for another time and enjoy the rest of the day.

Oh, and in addition to bullshit, there's one interesting passage that brings a sincere grin to my face:

Rather than relying on their own negotiating skills or knowledge of the relevant law, most users are better served by relying on the contract doctrine of unconscionability, the contract principle that agreements should be construed against the drafter, the copyright doctrine of misuse, consumer protection laws, and the intense competition within the software market to obtain advantageous terms in acquiring software. The personal computer software market has been particularly unforgiving of companies that try to license software on unreasonable terms. The information superhighway magnifies the negative public relations consequences for software publishers who are perceived as behaving badly; criticism on the Internet and on computer bulletin boards is swift, blunt, caustic, and spreads quickly. Software end users have even formed associations to monitor and influence the license terms offered by software publishers. As one user association official explained, "[l]icensing issues cannot be a barrier to accepting new technologies. If so, it's only the vendors who will suffer."

Take heed, MPAA! I happen to agree that sufficiently unconscionable terms, when exposed to enough light, have the potential to influence the perceived value of a product. It is interesting that DVD movies come with so many restrictions and downright secret terms (such as the conditions for authorization to circumvent, as required by DMCA) that are not mentioned on any EULA that comes with them. One could speculate that the purpose of DMCA was to make it so that MPAA didn't have to include nasty-looking EULAs with their product, which would scare away consumers. Cockroaches love the dark.
---

Is this even relevant?

[hrieke]

I mean, if no one bothers to read the damn EULA in the first place, and we all do what we want with the code (hack it, reverse engineer it, pirate, use the CD as a Frisbee), then why in the world do we get upset about it?
Sure some company could get heavy handed with some poor user, but I bet the out pouring of bad publisity would cool any action fast. Case in point: Censorware.
Frankly the whole software industry needs to have an attack of common sense, which regrettably is lacking.

Re:EULA vs. Warranty

[Corgha]

The companies only make provisions like this (in the case of the EULA) because it is necessary.

Is it really? Let's look at the three statements that the article identifies as being most common in an EULA.

1) "First, there is always an assertion of the company's copyright and ultimate ownership of the intellectual property represented by, and associated with the game"

Is this really necessary? Either the company owns the code or it doesn't. What the end user happens to think about the matter is of no effect. If someone steals my car, will I not be able to press charges unless I had previously made the thief agree that the car was mine? Proof of ownership is not a matter for EULAs, but for property law, unless you think I should put a sign on the car door saying "By touching this car, you agree that...."

2) "Second, there is always a promise that the game (or its associated documentation) will not be copied or shared" Again, this is not a matter for EULAs, but rather for copyright law. I am not prevented from photocopying a book or the work of a professional photographer by an EULA or even a copyright symbol, but rather by copyright law.

3) "The third promise every game obtains from the user is that they will not try to reverse engineer or modify the product in any way using the program they've received." This is a more debatable matter, and one I'm not going to get into in this post, except to bring up the "car with the hood welded shut" example and to note that while such provisions are of course beneficial to the software company, they have questionable value to society as a whole.

Why is it that the software market enjoys this unique priviledge of a prohibition on reverse engineering? (Yes, I know that computer make it a little easier, but that is beside the point.) I understand that software developers don't want people ripping off their ideas, but is this really good for society? What if, for example, Gillette had sued Shick for ripping off the idea of the disposable razor and thereby locked up the disposable razor market? "Your honor, we submit that it would have been impossible for Schick to develop a disposable razor without reverse-engineering ours. We even have evidence that a janitor at Schick corporation once saw a Gillette razor!"

Instead, Gillette has to rely on making better and better razors, which I would argue is good for the consumer and society as a whole. (Just think of all the extra trees we'd have to cut down to make toilet paper to dab up the blood from the nicks and cuts from straight razors.)

Anyway, this is all a tangent (it looks like I "got into it" anyway), and I suddenly feel the need to shave.

Re:Obvious Question: Who read the EULA?

[GC]

I have to admit, when showing junior techs how to do installs for some software. I often make the dry joke:

"Here is where you sign your life away, just scroll down and click "I accept""

Obvious Question: Who read the EULA?

[chancycat]

Maybe there should be a poll on this - How many Slashdotters actually make it through the first paragraph of a software EULA? For games, I don't think I've ever read a EULA. For some of the more expensive software, sure - I may have read a page's worth. Who, really, WHO? -reads these things?

Re:Obvious Question: Who read the EULA?

[youngsd]

I am a lawyer, and I have written EULAs for major software releases (no games, though). Do I read EULAs? No. Every now and then I get curious and take a peek, but really, why would I want to spend my free time reading this stuff?

-Steve

Re:Obvious Question: Who read the EULA?

[|0|4]

You mean you _don't_ read your EULAs?

Do you read all the way through contracts before signing them? Loan paperwork? Insurance policies? Rental agreements? Of course you do - you need to know what you're agreeing to when you sign.

So why is an EULA any different?

I read all the way through the EULA the last time I bought an off-the-shelf PC. And y'know what it said? Right at the top of the page - "This EULA is a legally binding agreement between you, the Manufacturer, and Microsoft Corporation." And a few paragraphs later - "If you do not agree to the terms and conditions of this EULA, then Manufacturer and Microsoft Corporation do not wish to license the software product to you. In such event, you should not use or copy the software product, and should promptly contact Manufacturer for instructions on return of the unused software product for a refund."

So I did. Kept the PC, returned the OS. Got a refund check.

THAT is one reason why you should read your EULAs.

We, as end-users, have few enough rights in the EULAs as it is - by not reading your EULAs, you prevent yourself from knowing, and therefore exercising, the few rights you have left.

Re:Obvious Question: Who read the EULA?

[garcia]

does it matter? no one reads them b/c most people don't give a flying rats ass what they say anyway... Who wouldn't burn a copy for their friend (like you bought it in the first place anyway hehe)?

Someone said in a previous post that they shouldn't be able to enforce it if you can't disagree w/the terms.. I am sure that is true, if you really wanted to take it to court, you would probably win your $50 back.

I really think that they have that there as a legality and not so much for the common user but for someone that really feels the need to PIRATE the program and make 1000's of bootleg copies...

Then again, what do I know?

Re:Obvious Question: Who read the EULA?

[rabidcow]

I sometimes (well now ya know what I do Friday nights...) read through them, but I have a note here to anyone writing anything that needs to be read:

NEVER WRITE WHOLE PARAGRAPHS IN ALL CAPS. I WILL NOT READ IT. I DON'T CARE HOW IMPORTANT IT IS, LEARN TO USE BOLD OR DIFFERENT FONT SIZES. ALL CAPS PARAGRAPHS ARE EXTREMELY RUDE.

Re:Obvious Question: Who read the EULA?

[Tycho]

Here is something I found at the the beginning of the second section of the EULA for Mac IE 5.0. This is right after the section about how by copying the software you agree to the terms of the EULA.

-----------------
1. GRANT OF LICENSE. The SOFTWARE PRODUCT is licensed as follows:

Installation and Use. Microsoft grants you the right to install and use copies of the SOFTWARE PRODUCT on your computers running validly licensed copies of the operating system for which the SOFTWARE PRODUCT was designed (e.g., Windows(r) 95; Windows NT(r), Windows 3.x, Macintosh, etc.).
-----------------

Does anyone else know if this clause is present in any other Microsoft products? If it is it makes running apps like this on top of emulation layers like Wine illegal. It also makes people with illegal copies of their OS unable to use IE 5.0. So what do you do if you are running the MacOS on a machine you are not supposed to like an old IBM PreP Box?

My Email to the Author

[ewhac]

The following is an email I sent to Bruce Rolston, the author of the article.

______________________________________________

Shrinkwrap license "agreements" are a hot-button issue for me, so I was disappointed when I read your article, "Look Before You Click" (linked to by Slashdot).

I wrote an editorial putting the case against such "agreements" over four years ago, which was published in MicroTimes. The text is on my Web site:

http://www.best.com/~ewhac/belarfnq/shrinkwrap.htm l

I have two primary objections to license "agreements" as currently practiced.

First are the terms of the "agreements" themselves. Those which are not a redundant statement of existing law I find to be completely without any ethical foundation whatsoever. In particular, I most strenuously object to anti-reverse-engineering clauses. Indeed, you make reference to these clauses in your article:

The third promise every game obtains from the user is that they will not try to reverse engineer or modify the product in any way using the program they've received. Keeping this protection is at the core of what differentiates owning the software from licensing it. If software companies ever had to transfer ownership of their work when they sell it, it would be impossible to prevent people from taking it apart and figuring out how it ticks. [ ... ]

That's correct. I argue that it should be impossible to prevent people taking apart their software, at least within the scope of mass-market software that is sold over-the-counter.

The software industry spends billions every year on research and development. But as large as this sum is, billions more are invested by auto manufacturers in the development of new cars. When finally released for sale, auto manufacturers routinely purchase the products of their competitors, take them apart bolt by bolt, and figure out how they were designed and built. And they use the knowledge gained from this to improve their own products.

The auto industry doesn't have a problem with this practice. I therefore fail to see why the software industry has any business objecting to the very same practice.

You also cite the writings of Microsoft's legal department:

They argued that most people have no interest in looking under the hood of their software. But software publishers who sold their product outright would have to assume that some people would, and raise the price for everyone accordingly in order to be confident of recouping their investment.

Frankly, I'm surprised that you re-printed this; it is devoid of logic, or even common sense.

There is no logical path between taking apart your software and software prices rising, any more than there is a path between opening the hood of your car and car prices rising. Indeed, the argument can be made that allowing people to take apart their software will drive prices lower, since people will more readily be able to analyze and identify jewels from junk, thereby lowering the price of junk (#include <gratuitous_microsoft_bash.h>).

Furthermore, the fact that most people have no interest in opening the hood of their software -- or their car -- in no way justifies obstructing people who do. Humans are naturally curious; they are going to take stuff apart and figure out how it works. It is an unalterable fact of the marketplace. Tune your business model accordingly.

My second primary objection to EULAs is the mechanism by which these so-called "contracts" are put in force. In short, any vendor anywhere can place any restriction on you they wish, without reasonable prior notice, and bind you to it using the most tenuous forms of assent.

Frankly, I should not have to take a contract attorney with me every time I go shopping at Fry's. The mechanism used by these "agreements" is fundamentally unethical, and wide open to egregious abuse:

• There is no restriction on terms. The vendor can declare anything they want,
• There is no adaquate notice given to the consumer that an onerous, binding contract is being formed,
• There is no adaquate notice of the terms of the contract,
• The contract attempts to alter the terms of the transaction after the fact,
• Assent to these contracts is established by the most tenuous -- almost unconscious -- acts.

If shrinkwrap "agreements" are enforceable, then what is to prevent retail sales of any item being replaced by "licenses?" Consider what would happen if Sears started selling their hammers only under "license:"

You see two hammers on the wall. One is the Craftsman Personal Hammer; the other is the Enterprise Edition Hammer. The Personal Hammer comes with a "license" forbidding you from using the hammer to build objects intended for sale, or Sears will sue you. The Enterprise Hammer "license" allows you to build object for sale, provided you kick back to Sears 1% of the gross sale price. The Personal Hammer costs $30.00; the Enterprise Edition Hammer costs $500.00. As far as the hammers themselves are concerned, in all material respects, they are identical.

Would you tolerate this? Would you take Sears' "contracts" seriously, especially if there were no record of you actually signing it? What if your minor child bought you the hammer as a gift? Whom does the "contract" bind?

"Well," I hear you say, "I'll just buy one from Home Depot." Surprise, surprise, they just changed all their hammers over to the same scheme last week. Further investigation reveals that you can no longer buy a hammer any more; you can only "license" them.

Relying on the doctrine of unconscionability is also a non-starter. Litigating a contract dispute is ruinously expensive, even if you're in the right.

The idea is worse than ridiculous, it is dangerous. The opportunity for abusing consumers is monumental. It is in fact already happening. DVD CCA is suing Jon Johansen (a foreign national) for his work on DeCSS, the DVD descrambling code; the suit is predicated on Johansen's alleged violation of Xing Software's "license" forbidding reverse-engineering. Mattel managed to arm-twist an out-of-court settlement out of Eddy L. O. Jansson and Matthew Skala for developing and publishing a program that decrypts the blocklist of CyberPatrol, a censorware package; the attendant "license" forbids reverse-engineering.

This method of forming contracts is grossly unethical, and should not be allowed to stand. It is for this reason that I do not, and have never, taken license "agreements" seriously.

There are many other points in the article I could raise, but this is already too long. At the very least, I hope, in part two of your article, you will give time to the opposing viewpoint. My sincerent thanks for your time.

Schwab

Site licensing

[Skevin]

When I was younger and more foolish, there were plenty of places of business where you could come in to play network games. The same was also true at a good deal of gaming conventions I had been to.
Fact of the matter is, not everyone has their own network at home. Such businesses are where younger (read: poorer) people can congregate. It's more about the comraderie than anything else.

I'm currently reading through the EULA of Diablo II right now, and I'm not finding any provisions for obtaining a site license for the program. Hell, I'm not even finding any site licensing info anywhere on the Web!
I would consider the EULA unenforcable. Sorry.

Solomon Kevin Chang

Re:I'm 16. Does EULA legally bind on me?

[WNight]

I don't think EULAs are binding, for many reasons, but your defense wouldn't work.

If you ask someone to do something for you, you're liable for their actions in doing so. If you ask me to steal you a car, you're guilty, though not of theft, instead it's conspiracy to commit, or some other 'supporting' crime.

EQ....

[crimsonic]

I heard that when you push that "I Agree" button every time you start EverCrack you're actually giving your soul to Verant. That's what I've heard anyway...

Re:How About A User's EULA?

[ewhac]

I tried to do something along these lines by creating a license that would forbid people from sending me spam. I was informed by an experienced attorney that what I drafted wouldn't stand up, since there was no "consideration" involved. Frankly, I couldn't see how offering the right to send me mail was qualitatively different from offering the right to use a piece of software I'd just purchased. Since IANAL, I dropped the subject.

If nothing else, writing it was cathartic...

Schwab

Funny Site Regarding EULA's

[LostScorp88]

At Gamespy.com, they did a Daily Victim regarding the EULA. It is funny, but it also is very true - most people don't look at the EULA and don't know what they're getting into!

Here's the link: http://www.gamespy.com/dailyvictim/index.asp?id=63

Re:well why don't you...

[Glowing Fish]

Obvious response...

I would like to see someone install M$ Office with the installer and have it work.

Re:Returning software

[Sloppy]

So if I read an EULA (after opening the box, of course) and decide I do not agree to it, what is my recourse?

Don't agree to the EULA, but keep and use the software anyway. Use it in accordance with rights and restrictions stipulated by copyright law.

Note that you may have fewer rights than if you had agreed to the license (e.g. if you reject GPL, then you may not redistribute the GPLed program) but somehow I don't think that situation is going to be likely in cases where you don't like the EULA.

---

Another interpretation

[LAI]

One passage especially struck me (bold emphasis mine):

"Sierra... and/or Sierra's licensors shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies (including injunctive relief to prohibit a breach of this License Agreement) with respect to threatened or actual breaches of this License Agreement."

So, let's say I call up Sierra's legal department to clarify what constitutes infringement. The hypothetical call:

me: I was just wondering, am I allowed to make a copy of the game CD for backup purposes? For instance, to keep in a safebox.

Sierra: You're not allowed to make any copies of the software, for any... wait... you have a burner?

me: Well, yes, my job requires me...

Sierra: And you have previously used this burner to store information on a compact disk or compact disks?

me: Um, yeah. I develop...

Sierra: *click*

And then I get a letter saying that my stating "I have a burner and know how to use it" constitutes a threat to breach the EULA? Remember: "without [...] proof of damages"

But, wait: if there's a "rat out your friends" clause as well... If a buddy (who also has the game) tells you about someone they know (who also has the game) who has a friend (who also has the game) who has been considering putting up a screenshot of a game on his website, you are violating your own EULA if you don't immediately write to the developers and warn them.

my head hurts

Re:Good luck...

[Kingfox]

EB's actual return policy is to give a full refund for the software if all of the original packaging and materials are present. You have ten days with a receipt.

And, back when I worked at EB on the weekends, I saw a few people return games based on the EULA. Including most copies of Microsoft's MMORPG, Asheron's Call. From what I understand, it has a very restrictive EULA regarding ownership of characters and such.

well why don't you...

[Rafikido]

not read the eula? never hit I agree? because anything the install does you can do by hand. Sure it's a heckuva lot harder, but you know what is installed where, you aren't viloating the agreement, you never clicked or even saw it..... Never have I seen any kind of packaging that states you must run the install.exe as the only means of installation.....

What about EB and WS?

[FortKnox]

Electronic Boutique and WaldenSoftware will fully return your money for opened software, up to 10 days after purchase. How does this affect any of the EULA on software?? Is it legal?

--

Re:What about EB and WS?

[mindstrm]

What do you mean how does it affect the eula?
You are giving up any rights to the software whatsoever if you give it back. I bet it's covered in the eula.

How About A User's EULA?

[The Groundhog]

Has anyone ever dreamt up the EULA from a consumer's position? Maybe someone should, in order to let all the software companies know exactly what we consumers want to agree to.

Would go a bit like this:
"...With my purchase of (insert vendor name here)'s software, the vendor agrees and acknowledges that
-I will be installing said software on all CPUs that I own.
-I will be making as many backup copies as I deem necessary.
-I have the right to create,own,and patent new works with vendor's software (e.g. screen shots, peotry, documents, art, methods of computing, etc.).
-I will allow friends and family to use vendor's software as long as the computer it is installed on is owned by me.
-The vendor must protect my privacy (protect my registration information, may not sell my registration information to anyone)
-the vendor must provide me with reasonable software support and maintenance,
-the software soure code is held in third-party escrow and will be provided to me should the vendor go belly-up.
-etc, etc,etc...

It never rains in Seattle... -Mike

EULA vs. Warranty

[Corgha]

From the article:

To the law, clicking "I agree" is different than buying a toaster, even if you wait to flip through the warranty papers back in your easy chair at home: you've still bought that toaster. (The difference has been that most appliance stores would take your toaster back if it turned out you disliked the warranty for some reason: computer retailers have often been less understanding.)

The other (real) difference is that the warranty on the toaster amounts to saying "If you do certain things, we don't have to replace this toaster", whereas a toaster with an EULA might say "You may not allow your friends to make toast with this toaster. You may not toast anything but white bread in this toaster. Once you plug this toaster into one outlet, you may not move it to another outlet. By opening the box to this toaster, you agree that if this toaster explodes and burns down your house, we are not liable, even if we knew about the exploding-toaster bug. This toaster and any toast you make with it remain the property of Hyper-mega-toaser-co, Inc." ... and so on.

The typical EULA is nothing like the typical Warranty. The former attempts to retrict the ways in which you may use a product, while the latter just says that if you do stupid things with the product, the company is not liable for any damage you might cause.

Re:EULA vs. Warranty

[Hard_Code]

If you grant that source code and the binaries generated from said source code, are in fact, two entirely separate entities, I do not see why it is impossible for a company to sell me ownership of the *binary*, yet not the *source*. I probably will never have need for the source...but if I can still be sold the binary, I can retain rights to reverse-engineering, copying, and various other fair uses.

I guess in your analogy I want to own the ride (so I can ride over and over again, or move the ride around (space shift it)), yet I don't really need to buy all the blueprints and technology that has gone into building the ride.

Re:Returning software

[Frank T. Lofaro Jr.]

Some of them are actually stupid enough to say "Click to Agree" and "clicking this button binds you to the contract", but still allow keyboard input (tab and return) to make you "press" the button and install. I am not a lawayer, but I know that the law can be VERY specific, and if only "clicking" on the buton binds you, and you use the keyboard, you MIGHT be able to say you didn't agree to it, even though the installer did. Or you can hack the code to make "I Disagree" work. Or even put a hacked DLL in the path that makes the first dialog box call return the code the the "I Agree" button. You are only bound by copyright law since you haven't agreed to the contract (you aren't at that point yet), and you never do agree.

Copyright law is what you are bound by then.

P.S. This is not legal advice - see a real lawyer for that.

The Russian View

[Ektanoor]

These EULA's stuff are quite interesting. Specially from the Russian point of view. The "Click and accept" is juridically nil here. And some software companies deliver their products without even a written EULA. One of them - Microsoft!

Besides, software companies are obliged to pass a written warrantee to users. However it is hard to understand where an EULA can be considered as such or not. In fact some EULAs are so EULAs that people forget some necessary juridical terms such as "warrants you...". Meanwhile they are quite strightforward on what you shouldn't do. And it is curious that such pretty guys like MS violate in all terms the Russian Law. Specially on something like reverse enginnering. I have the right to do it as far as I don't make holes on M$'s pockets. And specially on cases when I try to add something to software and the only way is to reverse engineer their stuff. However the EULA FORBIDS reverse engineer and looks quite scary on such stuff...

EULA's? End-User Low Acceptance. End Using Lamer's Applications.

Forcing companies to invalidate EULAs themselves

[Forkenhoppen]

Every time I hear about EULAs, I keep having the same thought. That thought is to profit off of these companies' stupidity. I would ensnare them in an EULA of my own, using the same methods that they typically use to ensnare me.

The project would proceed as follows; I would send off two emails to Microsoft, to the actual email address of a known Microsoft employee. The emails would be HTML, which would facilitate the following.

The second email would contain the source code for a short application I had written. The program would be my own work, copyright and all, written for a non-specific target platform. (But it would be written under Linux.) The application source would include several markers indicating who I am, what the program does at every point in it's execution, and a thank you message.

At the bottom of the HTML code, there would be a small image that would load from my website, which would increment a counter and provide exact information on what the IP address of the access was, and the time it was accessed.

The subject of the second email would be "Code which causes a new bug in the compiler."

The first email I would send would then be the EULA for the program. In it, I would specify the usual disclaimers about the program, the general limitations on use (showing it to other persons, etc.) and the usual "fill up space" legalese that's required for such contracts. Then, at the very end of the contract, just before whatever, I'd insert a paragraph stating some rather painful concessions that Microsoft would have to make to me. (..in the form of a yearly licencing fee for said software, regardless of use, and the freedom to copy and resell Microsoft .NET products for the fee of one cent per package)

Lastly, I'd title the first email something like "Questions about EULA? PLEASE READ!"

Typically, the way this would work would be that as soon as the cookie-image did it's business, I would then have my lawyer send off a registered letter to Microsoft, containing the emails and the resulting logs, and asking for the initial cheque of my yearly royalty.

Anyone have any comments on the legality of such a scheme? :)

Re:Hmm. Neat tax hack?

[sconeu]

This regarding the fact that you don't actually own the software that you purchase, you merely rent a license of it.

But if I'm renting the licence, why did I have to pay sales tax on it? Wouldn't that imply a purchase of some sort?

Returning software

[yamla]

So if I read an EULA (after opening the box, of course) and decide I do not agree to it, what is my recourse?

I know that Future Shop will refuse to take back the product. And we know that Microsoft normally won't either. So what can I do?

Can an EULA possibly be enforcable if it is impossible for me to reject it? Is it up to the retailer to ensure that I am able to reject it? Or is it up to the manufacturer to refund my money if I will not accept the license? Anyone know?